Barnett on the Necessary and Proper Clause
Randy Barnett (Boston University) has uploaded a new paper to SSRN: The Original Meaning of the Necessary and Proper Clause, forthcoming in the University of Pennsylvania Journal of Constitutional Law. Here is the abstract:
- This article presents evidence of the original public meaning of the Necessary and Proper Clause. I show that the meanings of “necessary” we have inherited from John Marshall’s discussion in McCulloch v. Maryland – a choice between “indispensably requisite” on the one hand and mere “convenience” on the other – is undercut by the available evidence. The truth lies somewhere in between. While these findings will, of course, be of interest to originalists, they should also interest the many constitutional scholars who consider original meaning to be one among several legitimate modes of constitutional analysis, as well as those scholars for whom original meaning is the starting point of a process in which it is “translated” into modern terms. By either account, it is important to get the original meaning right, even if it is not alone dispositive of today’s cases and controversies.
This is the companion to two previous articles – “The Original Meaning of the Commerce Clause” 68 U. Chi. L. Rev. 101(2002) and “New Evidence on the Original Meaning of the Commerce Clause” 55 U. Ark. L. Rev. 847 (2003) – in which I presented evidence of the public meaning of Congress’s power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” To determine the constitutionality of any particular legislation and evaluate judicial applications of the Commerce Clause, however, we must also consider the meaning of the Necessary and Proper Clause. For the expansive post-New Deal reading of congressional power owes as much to the Supreme Court’s interpretation of the Necessary and Proper Clause as it does to its expansive reading of the Commerce Clause.
Barnett is one of our most most thoughtful and original constitutional theorists, and this essay is another building block in his important project.